I could have gotten the tax certificate any time — does it matter that I only obtained it after the state's 60-day deadline had passed?

Plain-English summary

A construction subcontractor lost the deduction that would have exempted his receipts because he did not obtain the required tax certificate within the state's 60-day window — "substantial compliance" is not enough, the deadline is mandatory, and the Department's notice counted as of the day it was mailed to his address of record, even if he never read it. Protest DENIED.

In 1995, David Montoya performed construction work as a subcontractor, mostly for Robert Paiz Construction. He did not know his receipts were subject to gross receipts tax, did not report or pay it, and held no nontaxable transaction certificate (NTTC). His CPA prepared his 1995 income tax returns, but Montoya never asked whether other taxes applied. After the Department's "C-Span Unit" matched his federal Schedule C income against state records, it mailed him a limited-scope-audit letter on February 8, 1999, telling him he had 60 days to obtain any NTTCs needed to support deductions. He did not respond, and only obtained an NTTC from Paiz sometime after the Department issued a $6,958.88 assessment on May 8, 1999. He protested on three grounds; all failed.

1. The 60-day NTTC deadline is mandatory — "substantial compliance" is not enough

The construction-services deduction in Section 7-9-52(A) requires the subcontractor to have the buyer's NTTC. Section 7-9-43 says NTTCs must be in the seller's possession when the return is due, and the 1997 amendment gave taxpayers a second chance: if a seller is not in possession within 60 days from the date of the Department's notice, the deduction "shall be disallowed." The word "shall" makes that mandatory (State v. Lujan). Montoya's argument that it should not matter when he got the certificate — since he could have gotten it any time — misreads the statute. A taxpayer who does not follow the prescribed method waives the deduction; a showing of "substantial compliance" is not sufficient (Proficient Food Co.; Wing Pawn Shop).

2. The mailed notice was effective even if Montoya never read it

Montoya claimed he never received the February 8 letter, so his later production of the NTTC was timely. The hearing officer found it "more likely than not" that he did receive it — he admitted he did not read all his mail and was inattentive to this part of his business, and other Department letters also never reached his CPA. More importantly, the Department does not have to prove actual receipt: under Sections 7-9-43(C) and 7-1-9(A), the 60-day notice is effective "if mailed... to the taxpayer... at the last address shown" in the Department's records. The Department proved its routine C-Span mailing practice, the letter went to the address where Montoya had lived since 1995, and there were no mail problems. The notice was effective on February 8, 1999, setting an April 9 deadline — and he obtained the NTTC only after May 8.

3. No double taxation

Montoya argued that taxing his subcontractor receipts duplicated the tax the general contractor pays on reselling the work. The hearing officer rejected this: double taxation is not unconstitutional in New Mexico (Grant; Amarillo-Pecos Valley Truck Line; Tittmann), and in any event there was no double taxation — Montoya and Paiz are separate taxpayers, each taxed once on their own receipts (House of Carpets; New Mexico Sheriffs & Police Association). The Legislature created the Section 7-9-52 deduction precisely to prevent this kind of "pyramiding," and it would have applied — had Montoya obtained the NTTC on time.

Result: protest DENIED — the deduction was disallowed and the assessment stood.

What this means for you

Get the NTTC when the work is done — do not wait

The construction-services deduction depends on holding the buyer's NTTC. The safest practice is to obtain it at the time you perform the work. If you missed it, you get one grace period, but it is short and firm.

The 60-day window after a Department notice is a hard deadline

Once the Department sends a notice requiring NTTCs, you have 60 days to get them in hand. Miss it and the deduction "shall be disallowed" — the Department has no discretion, and being able to get the certificate "any time" does not help once the window closes.

Notice mailed to your address of record counts, read or not

New Mexico notices are effective when mailed to the last address in the Department's records. You cannot defeat a deadline by saying you never opened the letter. Keep your registered address current and actually read Department mail — or route it immediately to your accountant.

"It's double taxation" is not a defense

Taxing you and the general contractor on your separate receipts is not double taxation, and double taxation is not prohibited anyway. The way to avoid pyramiding is to use the deduction the law provides — which means getting and keeping the NTTC on time.

Common questions

Q: I could have gotten the certificate whenever I wanted. Why does the timing matter?
A: Because Section 7-9-43 requires you to actually possess the NTTC by the deadline — either when the return was due or within 60 days of the Department's notice. Being able to get it is not the same as having it; miss the window and the deduction is disallowed.

Q: I never received the 60-day letter. Isn't my later certificate timely?
A: No. The Department does not have to prove you received the notice — it is effective when mailed to your last address of record. Here the hearing officer also found you likely did receive it.

Q: Isn't taxing both me and the general contractor double taxation?
A: No. You and the contractor are separate taxpayers, each taxed once on your own receipts. Double taxation is not unconstitutional in New Mexico in any event, and the construction-services deduction exists to prevent pyramiding — if you claim it correctly.

Q: How do I avoid this outcome?
A: Obtain the buyer's NTTC when you do the work, keep your registered address current, read Department notices promptly, and act within any 60-day window you are given.

Citations and references

Statutes and regulations:

• NMSA 1978, § 7-9-52(A) — deduction for receipts from selling a construction service to a person engaged in the construction business who delivers an NTTC
• NMSA 1978, § 7-9-43 — NTTCs must be in the seller's possession when the return is due; the 1997 amendment adds a 60-day grace period after the Department's notice, after which deductions "shall be disallowed"
• NMSA 1978, § 7-9-43(C) and § 7-1-9(A) — the 60-day notice is effective if mailed to the taxpayer at the last address shown in the Department's records
• NMSA 1978, § 7-1-17(C) — an assessment of tax is presumed correct

Cases cited:

• State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977) — "shall" makes a statutory requirement mandatory, not discretionary
• Proficient Food Co. v. New Mexico Taxation & Revenue Department, 107 N.M. 392, 758 P.2d 806 (Ct. App.), cert. denied, 107 N.M. 308, 756 P.2d 1203 (1988) — failing to follow the prescribed method waives the deduction; "substantial compliance" is not sufficient
• Wing Pawn Shop v. Taxation and Revenue Department, 111 N.M. 735, 809 P.2d 649 (Ct. App. 1991) — deductions are construed strictly in favor of the taxing authority and must be clearly established
• New Mexico State Board of Public Accountancy v. Grant, 61 N.M. 287, 299 P.2d 464 (1956); Amarillo-Pecos Valley Truck Line, Inc. v. Gallegos, 44 N.M. 120, 99 P.2d 447 (1940); State ex rel. Attorney General v. Tittmann, 42 N.M. 76, 75 P.2d 701 (1938) — there is no constitutional prohibition against double taxation
• House of Carpets, Inc. v. Bureau of Revenue, 87 N.M. 747, 507 P.2d 1078 (Ct. App. 1973); New Mexico Sheriffs & Police Association v. Bureau of Revenue, 85 N.M. 565, 514 P.2d 616 (Ct. App. 1973) — no double taxation where the taxes fall on the receipts of different taxpayers

Source

• Listing: New Mexico Decisions & Orders
• Decision post: David Montoya
• Decision PDF: D&O 00-36

Original ruling text

BEFORE THE HEARING OFFICER
OF THE TAXATION AND REVENUE DEPARTMENT
OF THE STATE OF NEW MEXICO

IN THE MATTER OF THE PROTEST OF
DAVID MONTOYA No. 00-36
ID NO. 02-398922-00-0
ASSESSMENT NO. 2375867

DECISION AND ORDER

A formal hearing on the above-referenced protest was held October 26, 2000 before

Margaret B. Alcock, Hearing Officer. David Montoya (“Taxpayer”) was not present, but was

represented by Siegfried G. Montano, Jr., CPA. The Taxation and Revenue Department

("Department") was represented by Gail MacQuesten, Special Assistant Attorney General. During the

course of the hearing, it became clear that Mr. Montano would need the testimony of the Taxpayer in

order to properly present the Taxpayer’s case. Upon agreement of the parties, the hearing was

continued to December 1, 2000, at which the time the Taxpayer appeared with Mr. Montano and the

Department appeared through its counsel, Gail MacQuesten. Based on the evidence and arguments

presented, IT IS DECIDED AND ORDERED AS FOLLOWS:

FINDINGS OF FACT

1. During 1995, the Taxpayer performed construction services as a subcontractor for

Robert Paiz Construction. Although most of the Taxpayer’s 1995 income came from this contract,

he also received some income from performing services for other customers.

2. The Taxpayer did not know that his receipts from performing services as a

subcontractor or independent contractor were subject to New Mexico gross receipts tax and did not

report or pay gross receipts tax on this income.

3. The Taxpayer did not have possession of a nontaxable transaction certificate

(“NTTC”) from Robert Paiz Construction or any of his other customers in 1995.

4. In 1996, the Taxpayer engaged the services of Siegfried G. Montano, Jr., CPA, to

prepare his 1995 state and federal income tax returns.

5. Mr. Montano prepared the Taxpayer’s 1995 income tax returns, reporting the income

from his construction services as business income on Schedule C to federal Form 1040.

6. The Taxpayer did not ask Mr. Montano whether the Taxpayer owed any other type of

tax on his 1995 income, nor did Mr. Montano volunteer any information concerning the Taxpayer’s

liability for New Mexico gross receipts tax on this income.

7. The Department maintains what is known as the “C-Span Unit” within its Audit and

Compliance Division. This unit compares information received from the IRS with information in the

Department’s data base to determine whether taxpayers who have reported business income on

Schedule C of their federal income tax returns have also reported gross receipts tax on that income.

8. The Department stores information on reporting discrepancies on a computer located

in Albuquerque and uses this data base to select taxpayers for audit.

9. Letters notifying taxpayers that they have been selected for a limited scope audit

based on a discrepancy between their state and federal reporting are generated in batches of 100.

The letters also advise taxpayers that they have 60 days within which to obtain NTTCs and other

documentation needed to support any deductions claimed.

10. The Department assigns a specific employee to each batch of letters mailed out, and

the employee’s name appears as the contact person on all notices in that batch.

11. The letters are manually stuffed into window envelopes by employees of the C-Span

Unit and mailed, first class mail, from the Albuquerque office.

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12. Each letter is tracked by the Department employee to which it is assigned. In each

batch, the majority of cases are resolved when the taxpayer provides information that satisfactorily

explains the reason for the discrepancy in business income reported to the state and federal

governments or substantiates the taxpayer’s right to deduct those receipts. When no response is

received, or the information provided is insufficient to establish that the taxpayer’s receipts are

nontaxable, an assessment is issued to the taxpayer.

13. Sometime prior to February 1999, the Department received information from the IRS

concerning the business income reported on the Taxpayer’s 1995 federal income tax return. When

the Department investigated, it found the Taxpayer was not registered with the Department in 1995

and had never paid gross receipts tax on this income.

14. On February 8, 1999, the Department’s C-Span program generated a letter notifying

the Taxpayer that he had been selected for a limited scope audit. The letter also informed the

Taxpayer that he had 60 days within which to obtain possession of NTTCs and other documents

required to support deductions from gross receipts.

15. The letter was mailed from the Albuquerque office along with the 99 other letters in

the Taxpayer’s batch of C-Span letters.

16. The address on the February 8, 1999 letter mailed to the Taxpayer was 509 Regina

Pl. NW, Albuquerque, NM 87105, which was the last address shown on the Department’s records for

the Taxpayer. The Taxpayer has lived at this address since 1995 and still resides there.

17. The Department was not having any problems with its C-Span program in February

1999, nor is the Department aware of any problems related to the mailing or delivery by the Post

Office of the batch of letters that included the February 8, 1999 letter to the Taxpayer.

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18. The Taxpayer did not respond to the Department’s February 8, 1999 letter, nor did

the Taxpayer obtain possession of an NTTC from Robert Paiz Construction or any of his other

customers during the 60-day period referenced in the letter.

19. On May 8, 1999, the Department issued Assessment No 2375867 to the Taxpayer for

reporting periods January through December 1995 in the amount of $6,958.88, representing

$4,170.12 gross receipts tax, $417.00 penalty and $2,371.76 interest.

20. When he received the assessment, the Taxpayer took it to his accountant, Mr.

Montano, who advised the Taxpayer to obtain an NTTC from Robert Paiz Construction.

21. Mr. Montano also helped the Taxpayer prepare a written protest to the Department’s

assessment, which was filed June 8, 1999. The protest was initially denied as untimely, but was

subsequently accepted after the Department granted the Taxpayer’s June 16, 1999 request for a

retroactive extension of time to file the protest.

22. The May 8, 1999 assessment was the first document the Taxpayer took to Mr.

Montano concerning the Taxpayer’s liability for gross receipts tax on his 1995 business income.

23. Although the Taxpayer usually takes all notices and letters he receives from the

Department to Mr. Montano, there were at least three letters mailed to the Taxpayer by the

Department that the Taxpayer did not give to Mr. Montano: the February 8, 1999 letter notifying the

Taxpayer of the limited scope audit; an August 10, 1999 letter notifying the Taxpayer of the state’s

tax amnesty program; and a March 1, 2000 letter notifying the Taxpayer that his protest was being

forwarded to the Department’s legal bureau.

24. On November 16, 1999, Margie Gurule, an auditor in the Department’s protest

office, sent the Taxpayer a letter asking him to provide a copy of his 1995 federal income tax return,

his 1995 Form 1099, any NTTCs in his possession, and any other information related to his protest.

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25. On December 10, 1999, Mr. Montano responded to Ms. Gurule’s letter and provided

copies of the documents requested, including an NTTC issued to the Taxpayer by Robert Paiz

Construction.

26. Although the NTTC indicates that it was issued to the Taxpayer on December 1,

1994, the Taxpayer did not obtain possession of this NTTC from Robert Paiz Construction until

sometime after the Department’s assessment was issued in May 1999.

DISCUSSION

The Taxpayer protests the Department’s refusal to accept the NTTC from Robert Paiz

Construction as proof that the Taxpayer is entitled to deduct his 1995 receipts from performing services

as a construction subcontractor. The Taxpayer raises the following arguments in support of his protest:

(1) the Taxpayer substantially complied with the requirements of Section 7-9-52 NMSA 1978 and is

entitled to the deduction provided in that section; (2) because the Taxpayer never received the

Department’s original 60-day letter, the Taxpayer’s later production of an NTTC from Robert Paiz

Construction was timely; and (3) imposing tax on the Taxpayer’s receipts results in double taxation.

Substantial Compliance. The Gross Receipts and Compensating Tax Act provides several

deductions from gross receipts for taxpayers having possession of NTTCs. In this case, the Taxpayer

claims the deduction provided in Section 7-9-52(A) NMSA 1978:

A. Receipts from selling a construction service may be deducted from
gross receipts if the sale is made to a person engaged in the construction
business who delivers a nontaxable transaction certificate to the person
performing the construction service.

The requirements for obtaining NTTCs to support deductions from gross receipts are set out in Section

7-9-43 NMSA 1978. During 1995, when the Taxpayer was performing services for Robert Paiz

Construction, the statute provided, in pertinent part:

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All nontaxable transaction certificates of the appropriate series executed by
buyers or lessees shall be in the possession of the seller or lessor for nontaxable
transactions at the time the return is due for receipts from the transactions....

The Taxpayer did not have an NTTC from Robert Paiz Construction in his possession at the time his

1995 gross receipts tax returns were due. Accordingly, he did not meet the statutory requirements of

Section 7-9-43 NMSA 1978 then in effect and was not entitled to claim a deduction under Section 7-9-

52 NMSA 1978.

In 1997, the legislature amended Section 7-9-43 to allow taxpayers additional time within

which to obtain required NTTCs. Laws 1997, Chapter 72, Section 1. This version of the statute,

effective July 1, 1997, provides:

All nontaxable transaction certificates of the appropriate series executed by
buyers or lessees should be in the possession of the seller or lessor for
nontaxable transactions at the time the return is due for receipts from the
transactions. If the seller or lessor is not in possession of the required
nontaxable transaction certificates within sixty days from the date that the
notice requiring possession of these nontaxable transaction certificates is given
the seller or lessor by the department, deductions claimed by the seller or lessor
that require delivery of these nontaxable transaction certificates shall be
disallowed.

The amendment gave taxpayers audited after its effective date a second chance to obtain NTTCs that

should have been in their possession at the time their deductions from gross receipts tax were taken.

Taxpayers who rely on this provision must recognize, however, that they run the risk of having their

deductions disallowed if they do not obtain required NTTCs within the 60-day grace period provided

by the legislature.

The Taxpayer argues that since he could have obtained an NTTC from Robert Paiz

Construction at any time, the fact he did not have actual possession of the NTTC until after expiration

of the 60 days should not disqualify him from taking the deductions claimed. The Taxpayer misreads

the language of Section 7-9-43 NMSA 1978, which states that if a seller is not in possession of required

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NTTCs within 60 days from the date of the Department's notice, "deductions claimed by the seller...that

require delivery of these nontaxable transaction certificates shall be disallowed." (Emphasis added).

The legislature’s use of the word "shall" indicates that the provisions of the statute are mandatory and

not discretionary. State v. Lujan, 90 N.M. 103, 105, 560 P.2d 167, 169 (1977). Because the Taxpayer

failed to obtain an NTTC from Robert Paiz Construction within the 60-day period provided in Section

7-9-43 NMSA 1978, the Department had no choice but to disallow his deductions.

The Taxpayer’s argument concerning substantial compliance also ignores settled principles of

New Mexico tax law. Section 7-1-17(C) NMSA 1978 provides that any assessment of taxes made by

the Department is presumed to be correct. Where a deduction from tax is claimed, the statute must be

construed strictly in favor of the taxing authority, the right to the deduction must be clearly and

unambiguously expressed in the statute, and the right must be clearly established by the taxpayer. Wing

Pawn Shop v. Taxation and Revenue Department, 111 N.M. 735, 740, 809 P.2d 649, 654 (Ct. App.

1991). Where a party claiming a right to a tax deduction fails to follow the method prescribed by

statute or regulation, he waives his right thereto—a showing of “substantial compliance” is not

sufficient. See, Proficient Food Co. v. New Mexico Taxation & Revenue Department, 107 N.M. 392,

397, 758 P.2d 806, 811 (Ct. App.) cert. denied, 107 N.M. 308, 756 P.2d 1203 (1988) (affirming the

Department's refusal to honor an NTTC not in official form). By failing to obtain possession of

required NTTCs within the time provided in the statute, the Taxpayer waived his right to claim a

deduction under Section 7-9-52 NMSA 1978.

Mailing of 60-Day Letter. As discussed above, Section 7-9-43 NMSA 1978 provides that

taxpayers must be in possession of NTTCs “within sixty days from the date that the notice requiring

possession of these nontaxable transaction certificates is given the seller or lessor by the department.”

The Taxpayer maintains he never received the Department’s February 8, 1999 letter notifying him of

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the 60-day requirement and that the November 16, 1999 letter from Margie Gurule was the first time

the Department asked the Taxpayer to provide copies of NTTCs. Accordingly, the Taxpayer argues

that the NTTC Mr. Montano sent the Department on December 10, 1999 was timely.

The evidence on this issue is conflicting. Although the Taxpayer testified that he did not

remember receiving the Department’s February 8, 1999 letter, he also testified that he did not read

all of the letters and notices the Department sent him. The Taxpayer is unsophisticated in tax

matters and acknowledged that he did not pay much attention to this aspect of his business. Given

this testimony, the Taxpayer’s lack of memory concerning the February 8, 1999 letter has little

probative value in determining whether the letter was actually received.

The Taxpayer also testified that he turned all notices and correspondence from the

Department over to Mr. Montano. If this were the Taxpayer’s consistent practice, the fact that he did

not give Mr. Montano the Department’ February 8, 1999 letter would lend support to the Taxpayer’s

contention that he never received the letter. The evidence shows, however, that the Department sent

the Taxpayer at least two other letters that never reached Mr. Montano. One was an August 10, 1999

letter from Margie Gurule notifying the Taxpayer of the state’s tax amnesty program. The other was

a March 1, 2000 letter from Andrick Tsabetsaye, another auditor in the protest office, informing the

Taxpayer that his case was being forwarded to the Department’s legal bureau. The Taxpayer

testified that he did not remember receiving the August 10, 1999 letter, but did recall the March 1,

2000 letter. Neither letter was given to Mr. Montano.

Evaluating all of the evidence, I believe it is more likely than not that the Taxpayer did

receive the Department’s February 8, 1999 letter, that he intended to take the letter to Mr. Montano,

but was sidetracked with other business matters. In any event, the statutes do not require the

Department to prove the Taxpayer actually received the 60-day notice. Pursuant to Sections 7-9-

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43(C) and 7-1-9(A) NMSA 1978, the 60-day notice is effective “if mailed...to the taxpayer or person

at the last address shown on his registration certificate or other record of the department.” At the

hearing, the Department presented evidence of the C-Span Unit’s routine practice of creating and

mailing the combined audit notice and 60-day letter. The letters are generated by the Department’s

computer program and printed in batches of 100. Once printed, the letters are manually stuffed into

window envelopes by employees of the C-Span Unit and mailed, first class mail, from the

Albuquerque office. Each letter is tracked by the Department employee to which it is assigned.

On February 8, 1999, the Department’s C-Span program generated a letter notifying the

Taxpayer that he had been selected for a limited scope audit and notifying him that he had 60 days

within which to obtain possession of all NTTCs required to support his deductions. The address on

the letter was 509 Regina Pl. NW, Albuquerque, NM 87105, which was the last address shown on

the Department’s records for the Taxpayer. At the hearing, the Taxpayer testified that he has lived at

that address since 1995. The Department was not having any problems with its C-Span program in

February 1999, nor is the Department aware of any problems related to the mailing or delivery by the

Post Office of the batch of letters that included the February 8, 1999 letter to the Taxpayer.

The foregoing evidence is sufficient to establish that the Department mailed a 60-day notice

to the Taxpayer on February 8, 1999 in accordance with the requirements of Sections 7-9-43(C) and

7-1-9(A) NMSA 1978. The notice was effective on the date of mailing and required the Taxpayer to

obtain possession of NTTCs needed to support his deductions no later than April 9, 1999. Because

the Taxpayer did not obtain an NTTC from Robert Paiz Construction until sometime after May 8,

1999, all deductions taken in reliance on this NTTC were properly disallowed by the Department.

Double Taxation. The Taxpayer argues that requiring him to pay gross receipts tax on receipts

from performing services as a subcontractor will result in double taxation since the general contractor

9
charges tax when he resells those services to the final consumer. Although it is a popular

misconception that double taxation is illegal or unconstitutional, New Mexico courts have held, on

numerous occasions, that there is no constitutional prohibition against double taxation. New Mexico

State Board of Public Accountancy v. Grant, 61 N.M. 287, 299 P.2d 464 (1956); Amarillo-Pecos Valley

Truck Line, Inc. v. Gallegos, 44 N.M. 120, 99 P.2d 447 (1940); State ex rel. Attorney General v.

Tittmann, 42 N.M. 76, 75 P.2d 701 (1938).

In construing the Gross Receipts and Compensating Tax Act, New Mexico courts have also

held that there is no double taxation where the two taxes complained of are imposed on the receipts of

different taxpayers. See, e.g., House of Carpets, Inc. v. Bureau of Revenue, 87 N.M. 747, 507 P.2d

1078 (Ct. App. 1973); New Mexico Sheriffs & Police Association v. Bureau of Revenue, 85 N.M. 565,

514 P.2d 616 (Ct. App. 1973). That is the case here. The Taxpayer and Robert Paiz Construction are

separate taxpayers, each of which is engaged in business in New Mexico. The gross receipts tax is

imposed—once—on the Taxpayer’s receipts from selling construction services to Robert Paiz

Construction. The gross receipts tax is also imposed—once—on the general contractor’s sale of

construction services, including the resale the Taxpayer’s services, to the final consumer. Under the

facts of this case, the Taxpayer is required to pay gross receipts tax on his receipts only once. There is

no “double taxation”.

Even though taxing successive transactions is not double taxation, the New Mexico legislature

has been careful to provide a number of statutory deductions to prevent the pyramiding or stacking of

the gross receipts tax. One of these deductions is the deduction provided in Section 7-9-52 NMSA

1978 for receipts from selling construction services to a person in the construction business. This

deduction would have been available to the Taxpayer if he had obtained an NTTC from Robert Paiz

Construction at the time the work was performed or within 60 days after mailing of the Department’s

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February 8, 1999 notice. Because the Taxpayer failed to obtain the NTTC until after the statutory

deadline, he is not entitled to claim the deduction and is liable for gross receipts tax on his 1995

receipts from performing construction services for Robert Paiz Construction, as well as his receipts

from other customers.

CONCLUSIONS OF LAW

1. The Taxpayer filed a timely, written protest to Assessment No. 2375867, and

jurisdiction lies over the parties and the subject matter of this protest.

2. The Taxpayer is not entitled to the deduction from gross receipts provided in Section 7-

9-52 NMSA 1978 because the Taxpayer did not have timely possession of an NTTC as required by

Sections 7-9-52 and 7-9-43 NMSA 1978.

3. There is no prohibition against double taxation; in addition, the assessment of gross

receipts tax against the Taxpayer does not constitute double taxation.

For the foregoing reasons, the Taxpayer's protest IS DENIED.

DATED December 6, 2000.

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